FILED

United States Court of Appeals

Tenth Circuit

December 26, 2007

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 06-4208

JOE RAKES,
Defendant-Appellant.

Appeal from the United States District Court

for the District of Utah
(D.C. No. 2:05-CR-131-TS)

Jeremy M. Delicino, Salt Lake City, Utah, for Defendant-Appellant.

Jack B. Haycock, Assistant United States Attorney (Thomas E. Moss, United
States Attorney, with him on the brief), Pocatello, Idaho, for Plaintiff-Appellee.

Before LUCERO, BALDOCK, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Joe Rakes challenges his conviction and resulting sentence arising from an
alleged conspiracy to impede the investigation and prosecution of a white
supremacy group, the Soldiers of Aryan Culture. Specifically, he argues that
(1) the evidence presented at trial was insufficient to establish a conspiracy

between him and another participant in the alleged scheme; (2) the district court
improperly rejected his plea agreement based on an undisclosed victim impact
letter; and (3) the district court applied the wrong provision of the United States
Sentencing Guidelines (Guidelines) in calculating his sentence. While none of
these arguments is without force, we ultimately conclude that none merits reversal
under our governing standards of review.
I
A
In March 2004, an Assistant United States Attorney for the District of
Utah in Salt Lake City received a threatening letter stating, You stupid bitch!
It is because of you that my brothers are in jail for the Rico. I know you live
on the [street name redacted]. We will get you. til the casket drops. The
letter apparently referred to an ongoing racketeering prosecution under the
Racketeer Influenced and Corrupt Organization Act (RICO) that the victim
prosecutor was pursuing against members of the Soldiers of Aryan Culture. As
a result of the letter, the prosecutor moved out of her home for a month, was
assigned a United States Marshals detail to protect her for a time, and was
eventually removed from the prosecution in question.
The Federal Bureau of Investigations subsequent investigation of the
letter led to a woman named April Dowding, a friend of two of the RICO
defendants who was known to refer to them as her brothers. Ms. Dowding
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identified Mr. Rakes as being involved in writing or mailing the threatening

letter, as did other witnesses, including Laura Scott and Doug Errett.
The government indicted Mr. Rakes in March 2005 in the District of
Utah on two counts: mailing a threatening communication, 18 U.S.C. 876,
and conspiring to impede or injure an officer, 18 U.S.C. 372. After initially
pleading not guilty, Mr. Rakes agreed to enter a plea of guilty to the lesser
offense misprision of a felony, 18 U.S.C. 4, in exchange for an agreement
from the government that the appropriate sentence was 9 months imprisonment,
below the 18 to 24 months suggested by Section 2X4.1 of the advisory
Guidelines. See Fed. R. Crim. P. 11(c)(1)(C). The court conditionally
accepted the change of plea, subject to its receipt of a presentence report and
subsequent sentencing hearing.
Prior to sentencing, the district court received a victim impact letter, see
18 U.S.C. 3771(a)(4), from the victim prosecutor but did not disclose the
existence of the letter either to defense counsel or counsel for the government.
At sentencing, the district court opened the proceeding by expressing doubt
about the parties recommended sentence of nine months, remarking that it
would like them to explain how such a sentence would be justifiable even
though it represented only half what the advisory Guidelines recommended as a
minimum sentence. After argument, the district court, apparently seeing no
convincing reason for a below-Guidelines sentence, reversed its prior
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conditional approval of the plea agreement, indicated its belief that a more
substantial sentence was merited, and explained that it was concerned with
the very real victim impact presented by this case. This is a serious
matter. The impact on a respected Assistant U.S. Attorney in her role as
an Assistant U.S. Attorney is very real. Furthermore, the impact on her
as an individual, on her family is very real. And the Court is concerned
about the message that might be sent if this matter is not properly
punished.
R. III at 10-11. With the plea agreements recommended sentence rejected, the
district court advised Mr. Rakes of his right to withdraw his guilty plea and
proceed to trial, see Fed. R. Crim. P. 11(c)(5), a right Mr. Rakes decided to
exercise.
B
At trial, Ms. Dowding, the governments primary witness, testified that
the threatening letter was created in Mr. Rakess apartment but otherwise
offered contradictory factual scenarios concerning its genesis, stating variously
that (1) Mr. Rakes threatened her into writing the letter; (2) she could have
been threatened by someone else or the voices in her head; and (3) she wrote
the letter willingly, with the help of Mr. Rakes or at his suggestion, because she
was upset about the treatment of her brothers in the white supremacy group
who were charged in the RICO case and were in jail.
Laura Scott was similarly equivocal in recalling her own involvement
with the letter. She did testify, however, that she was a friend of Mr. Rakes

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and, at his direction and borrowing his car, went to the library to look up the
address of the victim prosecutor. Ms. Scott brought the information back to
Mr. Rakes at his apartment, where she saw Ms. Dowding was writing and had
paper and envelopes.
Doug Errett testified that he was also a friend of Mr. Rakes, having
known him in prison where they were both members of the Fourth Reich, a
white supremacist prison gang. Mr. Errett stated that in February 2004 he was
at Mr. Rakess residence with Mr. Rakes and Ms. Dowding, where he saw the
letter in question. At that time Mr. Rakes told him he and Ms. Dowding had
written the letter to the prosecutor on the Soldiers of Aryan Culture case.
At the close of the governments case, Mr. Rakes moved for acquittal on
both counts, see Fed. R. Crim. P. 29, which the district court granted as to
Count I, mailing a threatening communication, but denied as to Count II,
conspiring to impede or injure an officer. The jury thereafter found Mr. Rakes
guilty of the surviving count, and the district court denied his renewed Rule 29
motion. Before sentencing, Mr. Rakes filed a motion for disclosure of any
victim impact statements pursuant to Rule 32 of the Federal Rules of Criminal
Procedure, which the district court granted, providing both parties the letter it
had received from the victim prosecutor. Because the district court had not
disclosed the letter at the plea agreement stage, Mr. Rakes moved the district

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court to reconsider the plea agreement and recuse itself so another judge could
handle the inquiry. The district court denied the motion.
In preparing its presentence report, the probation office encountered a
different sort of complication. Because Mr. Rakess offense, conspiracy to
impede or injure an officer, 18 U.S.C. 372, does not have an assigned
Sentencing Guidelines section, the probation office was required to analogize
to another Guidelines section and ultimately chose to employ Section
2A6.1(a)(1), which covers certain crimes involving threatening or harassing
communications and has a base offense level of 12. Mr. Rakes objected,
arguing that the most analogous guideline was Section 2A2.4, relating to
obstructing or impeding a law enforcement officer, with a base offense level of
10. The district court overruled Mr. Rakess objection and, employing Section
2A6.1(a)(1), sentenced Mr. Rakes to 63 months imprisonment. 1
II
On appeal, Mr. Rakes first contends that the government presented
insufficient evidence at trial on an essential element of his crime namely, the
existence of an agreement between him and another person to prevent the
victim from discharging her duties by the use of force, violence, or

Mr. Rakes was not prosecuted for the offense that was the subject of his
rejected plea agreement, misprision of a felony. Misprision of a felony is a lesser
offense than conspiracy to impede or injure an officer, hence its more modest
recommended sentencing range of 18 to 24 months imprisonment.
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intimidation. In assessing such sufficiency challenges, we review the evidence

presented de novo, asking whether, viewing it in the light most favorable to the
government, as the prevailing party, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. In so doing, we
do not weigh conflicting evidence or credibility, but ask only whether the
governments evidence, credited as true, would establish the elements of the
crime. United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004).
While our standard of review is deferential to be sure, we will not uphold a
conviction obtained by piling inference upon inference, and the evidence
supporting a conviction must do more than raise a mere suspicion of guilt.
United States v. Valadez-Gallegos, 162 F.3d 1256, 1262-63 (10th Cir. 1998).
Mr. Rakes argues that Ms. Dowding could not have been a willing coconspirator with him because she was threatened into writing the letter. See
United States v. Williamson, 53 F.3d 1500, 1519 (10th Cir. 1995) (requiring
some evidence that an alleged co-conspirator knowingly and voluntarily joined
the conspiracy). This argument is, of course, addressed solely to whether a
conspiracy existed between Mr. Rakes and Ms. Dowding and does not
contemplate the possibility that, even without Ms. Dowding, the jury could
have found a voluntary agreement between Mr. Rakes and Ms. Scott or perhaps
Mr. Errett. Because in its briefing before us the government also pursues the
theory that the conspiracy was primarily between Mr. Rakes and Ms. Dowding,
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and because we agree that sufficient evidence of such a conspiracy was

presented, we accept for our current purposes Mr. Rakess premise that the
conspiracy was only between Ms. Dowding and himself.
Viewing the case in this light, we begin by readily acknowledging that
Ms. Dowding presented alternative and conflicting testimony about the nature
of her involvement in the alleged conspiracy, including statements suggesting
she was coerced by Mr. Rakes, by voices in her head, or perhaps by someone
else. But one of the accounts she offered did involve an admission of her
knowing and voluntary participation in a scheme with Mr. Rakes. In our
judicial system, the jury, as factfinder, was charged with the task of sifting the
wheat from the chaff, discerning which (if any) of Ms. Dowdings accounts
merited belief. See Young v. Sirmons, 486 F.3d 655, 666 (10th Cir. 2007) ([It
is] the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Of course, a jury is not free to credit testimony beyond the pale of
reason, see Parker v. Scott, 394 F.3d 1302, 1315 (10th Cir. 2005)
(distinguishing inconsistent testimony from that which is inherently
implausible), but we are not allowed to substitute our judgment for that of the
jury when it comes to deciding which rationally plausible account of the facts
to credit, see Young, 486 F.3d at 666.
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Though the question whether Ms. Dowding was worthy of belief in any
of her accounts is not one that can be reflexively dismissed, neither can we say
that no rational jury could have credited her testimony that she wrote the letter
willingly, with the help of, or at the suggestion of, Mr. Rakes. It seems to us
that the jury could have reasonably concluded that this particular version of
events was more believable than Ms. Dowdings alternative explanations, and
that her alternative explanations were calculated to minimize her own
culpability and rationalize her willing involvement with Mr. Rakes. Bolstering
the plausibility of such a conclusion is the fact that Ms. Dowding was not the
sole source of evidence about the agreement between herself and Mr. Rakes.
Mr. Errett, who read the threatening letter at Mr. Rakess apartment, testified
that Mr. Rakes told him that he and Ms. Dowding had written the letter. Ms.
Scott likewise testified that, after she looked up the address of the victim at the
library, she brought it back to Mr. Rakes at his apartment, where Ms. Dowding,
under no apparent duress, was writing and had paper and envelopes. To the
extent that the jury believed either or both of these witnesses, their testimony
tended to corroborate, and thus help make rationally plausible, Ms. Dowdings
version of the events in which she and Mr. Rakes knowingly and voluntarily
conspired.
While this case surely required the jury to pick and choose among
competing versions of events, with at least three witnesses testifying that Ms.
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Dowding and Mr. Rakes worked together on the threat letter we cannot say, as
we must for Mr. Rakes to prevail, that no rational trier of fact could have found
beyond a reasonable doubt that Ms. Dowding and Mr. Rakes entered into an
agreement aimed at preventing the victim prosecutor from performing her job
by means of force, violence, or intimidation.
III
Mr. Rakes next contends that the district court committed reversible error
by failing to disclose the victim impact letter during the course of its hearing
on the parties plea agreement. 2 In aid of his argument, Mr. Rakes rests
primarily on Rule 32 of the Federal Rules of Criminal Procedure, which
requires a sentencing court to provide both parties with any information on
which it will rely in sentencing and give them a reasonable opportunity to
comment on the information. See Fed. R. Crim. P. 32(i)(1)(B). Under our case
law, failing to disclose evidence on which the court relied in sentencing may
result in a remand for resentencing. See United States v. Alvarado, 909 F.2d
1443, 1444-46 (10th Cir. 1990).
We agree with Mr. Rakes and the government that it would have been
better for the district court to have provided the parties with copies of the
2

The government requested that its supplemental record, including the

victim impact letter, the threat letter and envelope, and the first presentence
report, be sealed a motion that we provisionally granted on May 7, 2007,
pending this panels final decision. Today, we confirm our prior ruling and grant
the governments (unopposed) motion.
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victim impact letter prior to its disposition of the plea agreement. Doing so
would have made more transparent the district courts concerns about whether
the plea agreements proposed sentence adequately accounted for the crimes
impact on the victim prosecutor and would have allowed the parties to address
those concerns more intelligently. But, by its plain terms, Rule 32(i)(1)(B)
obligates the district court to provide the parties advance access to information
on which it will rely in sentencing. And the harm it seeks to safeguard
against is sentencing based on evidence that the parties have not had reasonable
notice of and opportunity to address. See United States v. Begay, 117 Fed.
Appx. 682, 683 (10th Cir. 2004) (noting Rule 32 seeks to ensure that
sentencing is based on reliable facts found by the court itself after
deliberation). 3 Here, however, the court did not sentence Mr. Rakes. Instead,
it concluded the hearing by advising the parties that it would not sentence Mr.
Rakes that day in accord with their plea agreement. Had the court proceeded to
issue something other than the parties agreed sentence without first affording
3

See also 3 Charles Alan Wright et al., Federal Practice & Procedure
524 (3d ed.) (reporting that Rule 32 was amended to respond to the concern
that the vitally important sentencing decision will be made on the basis of
erroneous information); United States v. Hamad, 495 F.3d 241, 243 (6th Cir.
2007) (holding that, because escalation of a sentence based on undisclosed
evidence raises serious due process concerns, Rule 32 requires a sentencing
court either to disclose sufficient details about the evidence to give the defendant
a reasonable opportunity to respond or . . . to refrain from relying on the
evidence); United States v. Baldrich, 471 F.3d 1110, 1113 (9th Cir. 2006)
(pointing out Rule 32s concern with ex parte communications that may result in
the district court considering undisclosed or improper facts).
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them a meaningful opportunity to review and comment on the victims letter,

Rule 32(i)(1)(B) surely would have been implicated and we would have before
us a very different case. As it is, however, we cannot say the rule, by its plain
terms, was violated, or that the harm it seeks to avoid was implicated. In
fairness to the district court we must also note that, although the parties did not
have the victims letter, they were at least on notice of its existence and could
have sought its production. The presentence report prepared for the plea
hearing explicitly stated, under Victim Impact, that [the victim] is preparing
a statement that will be submitted directly to the Court. P.S.R. of Oct. 5, 2005
at 11.
Beyond Rule 32, there remains in our view a distinct and even more
germane question. A district court enjoys substantial discretion in deciding
whether to accept or reject a plea agreement under Rule 11. See Fed. R. Crim.
P. 11(c)(3); United States v. Robertson, 45 F.3d 1423, 1438 (10th Cir. 1995);
United States v. Carrigan, 778 F.2d 1454, 1461-62 (10th Cir. 1985). But that
discretion is not without limit. See Robertson, 45 F.3d at 1438. While a
defendant has no absolute right to have his plea agreement accepted, in our
supervisory capacity we have placed some boundaries on the district courts
discretion requiring district courts, for example, to articulate reasons on the
record if and when they decide to reject such agreements in order, among other
things, to insure district courts exercise sound judicial discretion. Id.
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Though Mr. Rakess brief primarily discusses Rule 32, we also understand him
to suggest that, even if Rule 32 is not implicated, a district court cannot
exercise sound judicial discretion under Rule 11 in rejecting a plea agreement
when it acts on the basis of undisclosed evidence, and this strikes us as a very
different and more appropriately targeted question.
The parties, however, have directed us to no authority on this issue and,
at the end of the day, we believe this case is properly resolved without reaching
it. Rule 11 expressly provides that, even if the rules associated with the
acceptance or rejection of a plea agreement are violated, any such error is to be
deemed harmless error if it does not affect substantial rights. Fed. R. Crim.
P. 11(h); see also Fed. R. Crim. P. 52(a) (Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.). On
balance, we think this mandate applies here.
After Mr. Rakes became aware of the victim impact letter, he asked the
district court to reconsider its decision to reject the parties plea agreement,
arguing that the courts decision had improperly relied on undisclosed
information. The district court denied reconsideration, citing, among other
grounds, the fact that it would have rejected the plea agreement regardless of
the letter for the reasons set forth plainly on the record. Sealed Mem.
Decision and Order, at 5. Those reasons included the district courts
assessment that the Guidelines advisory sentence for the crime to which Mr.
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Rakes agreed to plead guilty was at least double that of the parties agreed
sentence and neither party had offered a persuasive reason for such a disparity
under the facts and circumstances of this case. Before us on appeal, Mr. Rakes
likewise offers us no reason to doubt the district courts assessment, making no
attempt to show why such a disparity would have been warranted. Neither does
he identify, nor did he state in his motion to reconsider, what information in the
victims letter was incorrect or what arguments addressing it he would have
made to the district court. Without being given some reason to think that a
sentencing court would have reached a different outcome in the disposition of
the plea agreement had the letter been disclosed, we are compelled to conclude
that, even taking the district courts failure to disclose the letter to be error, it
was harmless error.
IV
After trial, the district court sentenced Mr. Rakes on the sole surviving
charge, 18 U.S.C. 372, in accord with Section 2A6.1(a)(1), the guideline for
threatening or harassing communications. Mr. Rakes argues that the most
analogous guideline is instead Section 2A2.4, pertaining to obstructing or
impeding an officer, and that his sentence was therefore in error.
In approaching this dispute, we note at the outset that it is common
ground between the parties that the Sentencing Guidelines Manual does not
specify a sentencing range for Mr. Rakess offense, and so the district court
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was obliged to apply the most analogous offense guideline [or,] [i]f there is
not a sufficiently analogous guideline, [to sentence the defendant according to]
the provisions of 18 U.S.C. 3553. U.S.S.G. 2X5.1. Accordingly, under
our case law, the district court first had to determine whether any guideline was
sufficiently analogous to be used in sentencing Mr. Rakes. United States v.
Nichols, 169 F.3d 1255, 1270 (10th Cir. 1999). If more than one sufficiently
analogous guideline could be found, the court then had to assess which
qualified as the most analogous, and employ it in sentencing Mr. Rakes. Id. at
1271. Put another way, the court first had to ask what analogous provisions
were within the ballpark; it then had to ask which represented the best fit. On
appeal, we review the district courts determinations on these scores de novo to
the extent they rest on legal bases, and for clear error to the extent they rest on
factual findings. Id. at 1270-71; United States v. Fortier, 180 F.3d 1217, 1225
(10th Cir. 1999). Because the parties dispute in this case involves only an
interpretation of the Guidelines, our de novo standard applies.
A
On the first question posed by our test, we discern no material
disagreement between the parties. We generally compare the elements of the
defendants crime to the elements of federal offenses already covered by
specific Guidelines sections to ascertain which plausible analogies exist for
sentencing. Id. at 1270. Here, the parties seem to agree that two candidates
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emerge from this process Sections 2A6.1 and 2A2.4. The offense of which
the jury convicted Mr. Rakes requires (1) two or more persons to conspire
(2) to prevent any person from discharging the duties of their office under the
United States (3) by force, intimidation, or threat. See 18 U.S.C. 372.
Guideline 2A6.1 applies to threatening or harassing communications, and the
majority of the offenses covered by that section capture the threat and
intimidation aspect of 18 U.S.C. 372, requiring a threat of harm against a
person, and some require that the person be a particular officer of the United
States. See 18 U.S.C. 32(c), 871, 876, 877, 878(a), 879, 2332b(a)(2); 47
U.S.C. 223(a)(1)(C)-(E); 49 U.S.C. 46507. Meanwhile, guideline 2A2.4
applies to efforts to obstruct or impede various officers or employees of the
United States by force, see 18 U.S.C. 111, 1501, 1502, to the obstruction of
a federal law enforcement agent, see 18 U.S.C. 3056(d), and to interference
with the administration of internal revenue laws by force or threat of force, see
26 U.S.C. 7212(a).
B
Which of these two provisions, 2A6.1 or 2A2.4, is most analogous and
thus properly employed in this case is where the dispute begins. The
government argues, and the district court agreed, that 2A6.1 is the most
analogous provision. Mr. Rakes disagrees, submitting that 2A2.4 is the apter
section. The dispute is hardly inconsequential: under 2A6.1, with the
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appropriate adjustments for Mr. Rakess criminal history and offense

characteristics, his advisory Guidelines sentencing range is 63 to 78 months;
under 2A2.4 with similar adjustments, his sentencing range is only 37 to 46
months.
In approaching the resolution of this dispute, we pause to acknowledge
an antecedent complication. Our sister circuits have adopted competing
approaches to the question of what information a court should look at when
deciding which Guidelines section is the most analogous. See Nichols, 169
F.3d at 1271. Some courts restrict their analysis to the facts alleged in the
indictment or information. Id.; see U.S.S.G. 1B1.2(a); United States v.
Saavedra, 148 F.3d 1311, 1316-18 (11th Cir. 1998); United States v. Hornsby,
88 F.3d 336, 338-39 (5th Cir. 1996); United States v. Terry, 86 F.3d 353, 35778 (4th Cir. 1996). Others look beyond such documents to examine the
defendants proven relevant conduct. Nichols, 169 F.3d at 1271; see U.S.S.G.
1B1.3; United States v. Osborne, 164 F.3d 434, 438 (8th Cir. 1999); United
States v. Marquardo, 149 F.3d 36, 45 (1st Cir. 1998); United States v. Clay,
117 F.3d 317, 319-20 (6th Cir. 1997). The parties in this case do not advocate
for either approach and because we conclude that the district court chose the
appropriate guideline using either methodology, we decline to enter this intercircuit fray today.

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Looking solely to the face of Count II of the indictment, it charged Mr.

Rakes with a conspiracy to threaten and intimidate a federal prosecutor; alleged
that he conspired to write a letter with threatening language, listing the street
on which the victim lived; and contended that he or a co-conspirator sent the
letter to the victim through the mail. Guideline 2A6.1 appears most analogous
to the offense conduct charged in Count II because, as the district court noted,
it better captures the element of a letter seeking to threaten or intimidate a
public official. The majority of the 2A6.1 listed offenses concern threats of
harm. See U.S.S.G. 2A6.1. By contrast, most (though admittedly not all) of
the offenses listed as predicates for guideline 2A2.4 do not involve threats or
intimidation and the concomitant complexities and premeditation such actions
imply, but instead concern simple assaults against officers of the United States.
See U.S.S.G. 2A2.4. Accordingly, when compared against the indictment
itself, 2A6.1 appears the most analogous guideline.
An examination of all the circumstances of the case confirms rather than
alters this conclusion. The case actually proven at trial against Mr. Rakes
centered around the threatening letter focusing on his involvement in writing
the letter, addressing it, and conveying its threat to the victim prosecutor.
Although the evidence showed that Mr. Rakes sought to impede the prosecution
of members of the Soldiers of Aryan Culture, it also demonstrated that he
intended to accomplish this goal by means (at least in the first instance) of a
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premeditated and comparatively complex scheme of intimidation rather than by

an act of simple assault.
C
Mr. Rakes objects that, like 18 U.S.C. 372, guideline 2A2.4
incorporates the fact that the victim was a governmental officer, while
guideline 2A6.1 is not necessarily so limited. And this is surely true. But
while 2A6.1 does not incorporate the official status of the victim into the base
offense level, the Guidelines enhancement for an official victim, Section 3A1.2,
expressly applies to 2A6.1 and not 2A2.4. See U.S.S.G. 2A2.4 n.2. Thus, the
status of the victim is covered by both provisions and no reason to distinguish
between them. Confirming the point, the district court applied the official
victim enhancement to Mr. Rakess sentence, making his sentence under
guideline 2A6.1 track the elements of 18 U.S.C. 372 almost exactly.
Mr. Rakes next argues that guideline 2A2.4 is most analogous because its
title, Obstructing or impeding officers, employs an almost identical
formulation as the title language of 18 U.S.C. 372, Conspiracy to impede or
injure officer. But whether we adopt the face of the indictment test or the
competing proven conduct test, in neither circumstance is the question as facile
as matching titles of statutes and guidelines. Both require more analysis from
us than that. Neither can titles of statutory or Guidelines provisions limit the
plain meaning of the provisions themselves. See Griffin v. Steeltek, Inc., 160
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F.3d 591, 594 n.4 (10th Cir. 1998) ([T]he title to a statutory provision is not
part of the law itself.); 2A Sutherland Statutory Construction 47:3 (7th ed.)
(stating the statutory title does not constitute part of the statute and is not
controlling regarding its construction or interpretation).
Looking beyond titles, Mr. Rakes suggests that guideline 2A2.4 is the
most analogous because one of the statutes (though only one of the at least 30
statutes) covered by the guideline, 26 U.S.C. 7212, proscribes threatening
conduct similar to that of 18 U.S.C. 372. Section 7212, part of the Internal
Revenue Code, proscribes using force or threats of force, including threatening
letters or communications, to intimidate or impede internal revenue officers or
the administration of the internal revenue laws. 26 U.S.C. 7212.
Although we concede that the offense conduct in 7212 is similar to the
372 offense conduct in this case to the extent both center on communicating
threats to federal officers, Mr. Rakess argument fails to take account of the
fact that 7212 actually consists of two parts with two different applicable
guidelines. The first part, intimidating or impeding a tax administration officer
of the United States, uses guideline 2A2.4, but the second part, obstructing or
impeding the due administration of the internal revenue laws, employs
guideline 2J1.2, obstruction of justice, which is more severe than 2A2.4. See
U.S.S.G. app. A; United States v. Gunwall, 1998 WL 482787, at *3 (10th Cir.
1998). And, in fact, guideline 2J1.2 imposes sentences more akin to those
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found in 2A6.1, the provision employed by the district court in this case. For
example, given Mr. Rakess offense conduct and criminal history, his 2A6.1
advisory sentencing range would be 63-78 months; with the same offense
characteristics and criminal history, his sentencing range under 2J1.2 would be
70-87 months (as opposed to 37-46 months under 2A2.4). The indictment in
this case not only charged Mr. Rakes with conspiring to threaten the prosecutor
but also with conspiring to impede and thwart the prosecution of members of
the Soldiers of Aryan Culture, that is, impede the due administration of the law.
Thus, even if 7212 were similar to the offense in this case, Mr. Rakess
conduct would likely implicate, and be more analogous to, the more severe
guideline, not 2A2.4, as he urges.
Finally, Mr. Rakes contends that it was improper for the district court to
sentence him under guideline 2A6.1, threatening or harassing communications,
when the court granted him an acquittal on mailing a threatening
communication, 18 U.S.C. 876, which falls squarely within guideline 2A6.1.
We have, however, already rejected precisely this argument in Nichols. There,
the jury in the Oklahoma City bombing trial acquitted Terry Nichols on counts
of first and second degree murder, but the district court sentenced him for his
crime of conviction conspiring to use a weapon of mass destruction under
the guideline applicable to first degree murder. Nichols, 169 F.3d at 1276 n.7.
We affirmed Mr. Nicholss sentence under the first degree murder guideline,
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finding that it was the most analogous, and his acquittal of murder did not
affect our most analogous guideline inquiry. See id. at 1270-76; see also
United States v. Sarracino, 131 F.3d 943, 950 (10th Cir. 1997) (finding no
merit in the argument that acquittal of first degree murder should preclude use
of the first degree murder offense level at sentencing). Mr. Rakes offers us no
reason why Nichols does not control the outcome of his case on this point.
* * *
The district courts judgment is Affirmed.

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